Journal of Criminal Law and Criminology
Volume 44 | Issue 1
Article 6
1953
The Grand Jury (Special Reference to Illinois)
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The Grand Jury (Special Reference to Illinois), 44 J. Crim. L. Criminology & Police Sci. 49 (1953-1954)
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CRIMINAL LAW CASE NOTES AND COMMENTS
Prepared by students of Northwestern
University School of Law, under the
ditettion of student membbrs bf th
Law School's Legal Publication Board
William G. Morgan, Comment Editor
THE GRAND JURY
(Special Reference to Illinois)
The grand jury is one of the oldest institutions in the administration of
justice. In the early history of its development the powers of the grand jury
were not clearly defined, and it seems that at first it was a body which not
only accused, but actually tried public offenders.1 However, from the time
of its inception in this country the grand jury has been an agency acting solely
for the purpose2of investigating all crime and wrongdoing within a county or
federal district.
The broad powers of the grand jury have become stagnant in many communities and the ancient common law institution has become known as the
"rubber stamp of the prosecuting attorney". When such a condition exists
it is not because the powers of the grand jury have been modified, but because
the members of the panel have not been informed of their true powers and
duties. These potential powers in a grand jfury are important powers of the
people. The public ought to be made aware of them in order that their full
utilization may be realized:
Under the common law a person could not be held to answer for treason, a
capital offense, or a felony, except upon the indictment of a grand jury. The
fifth amendment of the Federal Constitution guarantees an individual the
right to an indictment by the grand jury "for a capital or otherwise infamous
crime..., ', but this amendment places no limitation upon the states, since
the "due process" clause of the fourteenth amendment does not require them
to adopt the use of the grand jury procedure. 4 Even if a state has adopted
the grand jury system there is no Constitutional requirement that the grand
jury should be organized as, or have the powers of, a common law grand jury.5
When, however, the fifth amendment does apply, in the absence of restrictive
statutes,
the grand jury would have the full powers it had acquired at common
6
law.
The Illinois Constitution of 1870 contains a provision that no person shall
be held to answer for a criminal offense unless he has been indicted by a
grand jury, except in cases where the punishment is by fine or imprisonment
1. Hurtado v. California, 110 U.S. 516 (1884). This case is especially thorough in its
revelation of the early history of the grand jury. See Sawyer v. State, 94 Fla. 60, 113 So. 736
(1927) ; State v. Kavanaugh, 12 N. M. 404, 258 Pac. 204 (1927).
2. Hurtado v. California, 110 U.S, 516 (1t84); Miley V. Distt1it Cotift, 221 Iblwl 732,
266 N.W. 815 (1936).
3. U.S. Const. Amend. V.
4. Lem Woon v. Oregon, 229 U.S. 586 (1913); Hallinger v. Davis, 146 U.S. 314 (1892).
5. Talton v. Mayes, 163 U.S. 376 (1896); Parker v. People, 13 Colo. 155, 21 Pac. 1120
(1889). Contra: State v. Hartley, 22 Nev. 342, 40 Pac. 372 (1895) holding that a general
provision in a constitution for indictment by a grand jury requires a grand jury of the
common law type.
6. In Re Opinion to Governor, 62 R. 1. 200, 4 A.2d 487 (1939).
49
THE GRAND JURY
[Vol. 44
(other than in the penitentiary), in cases of impeachment, and in cases arising
in the army and navy (or in the militia when it is in actual service in time
of war or public danger). 7 The Constitutional provision makes it possible
for the legislature to abolish the grand jury in all cases-a privilege which
the legislature has never exercised. 8 What has been done, however, is to allow
crimes below the grade of felony to be presented by information. 9 The term
grand jury is not defined in the Illinois Constitution or by legislative act, and
since common law principles applicable to grand jury proceedings and powers
are in effect in Illinois, felonies may only be prosecuted after an indictment
by the grand jury. 10
I
QUALIFICATION AND SELECTION
The grand jury, as it was known at common law, was composed of from
twelve to twenty-three free-holders, who were residents of the county in which
the crimes they were investigating were committed, and who had not been
convicted of treason, a felony, or any other infamous crime. 1 ' It was also
required that they be citizens and of the male sex. 1 2 Today the qualifications
of the grand juror are controlled almost everywhere by statute. 13 Illinois
requires that a full panel consist of twenty-three persons, and sixteen of
these must be present whenever the grand jury is acting. 14 Those persons
acting as grand jurors must be legal voters of either sex between twenty-one
and sixty-five years of age. They must be in possession of their natural
faculties and not infirm or decrepit; be of fair character, approved integrity,
sound judgment, well informed, and able to understand the English language;
be inhabitants of the town or precinct from which chosen, and not exempt
from jury service. 15
The method of selecting grand jurors in Cook County (in which Chicago
is located) differs from that used in counties having a population of less than
250,000. In the former, three jury commissioners appointed by the judges
select twenty-three persons having the statutory qualifications, and in the
latter counties the selection is made by the county board.'8 At the same time
that the regular panel for the grand jury is selected, a supplemental panel
of twenty-three members with the same qualifications is chosen who will serve
actively if necessary.' 7 The clerk of the court certifies both panels and delivers
the summons to the sheriff for service upon the chosen grand jurors.:18 The
grand jurors must then appear on the first day of the term of court or upon
such day as the court or judge directs.' 9 The court then appoints a foreman
for the grand jury, who has the power to swear all witnesses appearing before
that body. 20 Whenever any twelve members of the grand jury find sufficient
7.
ILL. CoNsT. Art. II, §8.
8. ibid.
9. People v. Glowacki, 236 Ill. 612, 86 N.E. 368 (1908); People v. Manganio, 172 Ill.
App. 495 (1912).
10. People ex tel. Ferrill v. Graydon, 333 I1. 429, 164 N.E. 832 (1928).
11. See the thorough annotations, Note, 28 L.R.A. 33, 37 and Note, 28 L.R.A. 196 (1895).
12. Parus v. District Court, 42 Nev. 229, 174 Pac. 706 (1918).
13. State v. Bramlett, 166 S. C. 323, 164 S.E. 873 (1932); Parus v. District Court, 42
Nev. 229, 174 Pac. 706 (1918).
14. ILL. REa. STAT. c. 78, §16; ILL. REV. STAT. c. 38, §715 (1951).
15. ILL. REv. STAT. c. 78, §2 (1951).
16. ILL. REV. STAT. c. 78, §9 (1951).
17.
18.
19.
20.
Ibid.
Ibid.
Ibid.
ILL. REv. STAT. c. 78, §17 (1951).
1955]
THE GRAND JURY
evidence to support an indictment it is endorsed a "true bill"; if there is
not sufficient evidence the endorsement reads "not a true bill".21 In either
situation the foreman signs his name as foreman and the bill is returned to
the court with the names of witnesses who furnished evidence noted thereon. 22
In some cases, the right of a person to act as a grand juror, even though
he may have the other qualifications, has been questioned because of his
alleged bias or interest in the outcome of the proceedings. Absent a statutory
provision to the contrary, the prevailing rule is that bias or prejudice on the
part of one summoned as a grand juror, or the fact that he has formed or
expressed an opinion as to the guilt of the accused, does not disqualify him
from serving as a grand juror or affect the validity of the indictment. 23 The
reasoning behind this theory is that the grand jury is fundamentally an
accusing and not a judicial body, therefore, the grand juror not only has
the right but the obligation to act upon his own information.24 Further
justification is found in the oath which the grand juror takes. Generally this
requires him to act against friends and enemies, and to diligently inquire
into the commission of crimes. It would be impossible for him to do this
without using his personal
observations and opinions concerning the com25
mission of such crimes.
II
PowEs .ND LImrIATIONS
Sources of Information:
The basic power of the grand jury is termed inquisitorial. It is derived
from the fact that proceedings before the grand jury constitute the only
general criminal investigation known to the common law. 26 The prosecutor
may inquire generally but he does so without subpoena power. The magistrate,
who may issue subpoenas, is bound in his investigation to specific charges of
a crime. These latter agencies lack the power to act forcefully upon mere
belief, or upon information which does not complain against a specific individual. However, the "John Doe" inquiry is an inherent common law
power of the grand jury,2 7 and unless such power has been removed from the
grand jury by statute or judicial decision it still exists.
In 1872 Justice Field, in his famous charge to a federal grand jury, stated
that there were four ways by which a grand jury could obtain information
concerning a crime. 28 The four ways included: (1) information that may be
called to their attention by the court; (2) information that may be submitted
for their consideration by the district attorney; (3) information that may
21. Ibid.
22. Ibid.
23. Joslyn v. People, 67 Colo. 297, 184 Pac. 375 (1919) ; State v. Hamlin, 47 Conn. 95, 36
Am. Rep. 54 (1879); Commissioner v. Woodward, 157 Mass. 516, 32 N.E. 939 (1893).
Contuia: Rolland v. Commissioner, 82 Pa. 306, 22 Am. Rep. 758 (1876).
24. Cases cited note 23 supra; Note, 88 A.L.R. 900 (1934-).
25. State v. Easter, 30 Ohio St. 542, 27 Am. Rep. 478 (1876).
26. Ward Baking Co. v. Western Union Tel. Co, 205 App. Div. 723, 200 N.Y. Supp. 865
(3rd Dept. 1923).
27. People ex reL Sampson v. Dunning, 113 App. Div. 35, 98 N.Y. Supp. 1067 (2d Dept.
1906) ; People ex rel. Travis v. Knott, 204 App. Div. 379, 198 N.Y. Supp. 142 (1st Dept.
1923); Medalie, Grand Jury Investigations, 7 THE PANEL 5 (1929).
The cases seem to
repel any inference that a magistrate may conduct a "John Doe" inquiry even as an aid in
the exercising of his discretion to summon a grand jury, Williams v. People, 103 Colo. 1909,
103 Pac. 298 (1909) ; Ketcham v. Comm., 204 Ky. 168, 263 S.W. 725 (1924).
28. 30 Fed. Cas. No. 18, 255 (C.C.D. Cal. 1872); see Ford, The Grand Jury, 8 LAw
Soc. J. 205 (1938).
THE GRAND JURY
[Vol. 44
come to their attention in the course of their investigation of matters already
before them or from their own observations; (4) and information that may
come to their attention from the disclosures of their associates. 29 It will be
noted that presentation of facts by "a private prosecutor" was not listed by
Justice Field. This severely limited the power formerly exercised by the
grand jury in the federal courts. It has been stated that at common law the
grand jury had the power to prefer indictments at the instance of private
prosecutors. 30 The "private prosecutor" has been defined as "one who sets
in motion the machinery of criminal justice against a person whom he
suspects or believes to be guilty of a crime, by laying an accusation before
the proper authorities, and who himself is not an officer of justice. "31 An
example of how the "private prosecutor" initiates grand jury action can be
seen in a Louisiana case where a group of women, prominent in civic and
reform movements, requested the grand jury during recess to investigate a
charge and, if the facts justified it, to take action thereon. The resulting
indictment was held valid.3 2 If a jurisdiction follows the view taken by the
Louisiana courts it is not necessary that the individual initiating grand jury
action have probable cause to believe the accused guilty. 33
In contrast to the liberal Louisiana view regarding "private prosecutors",
some courts will punish by criminal proceedings those persons who bring
charges before the grand jury. Several reasons are advanced for retaining
this power. The charges may serve to influence a proceeding already before
the grand jury, and such interference is deemed contempt.34 It is also considered contempt in that charges made by a private prosecutor have the
tendency to divert the grand jury from its regular schedule or to overload
the pre-arranged session.3 5
It would seem that these courts in reality are modifying the common law
rule although they give "lip service" to it. Such modification may be justified
if a distinction is maintained between the case where the proceeding is already
before the grand jury and the case where the proceeding is initiated in the
first instance by the "private prosecutor." The right of the individual to press
the grand jury for action in the latter case should be preserved. The value
of this right carries even more weight in cases where the individual is pre29. The Illinois statute requires that no grand juror shall make presentments upon
their own knowledge unless that information is known to at least two of their number,
except in the case where the single juror with the information is sworn as a witness. ILL.
R E. STAT. c. 78, §19 (1951).
30. People v. Sheridan, 349 Ill. 202, 181 N.E. 617 (1932) ; People v. Graydon, 333 Il1.
429, 164 N.E. 832 (1929) ; Blaney v. State, 74 Md. 153, 21 AtI. 547 (1891) ; Brack v. Wells,
184 Md. 86, 40 A.2d 319 (1944).
31. BLACK's LAW DICTIONARY 1386 (4th ed. 1951).
32. State v. Sullivan, 159 La. 589, 105 So. 631 (1925).
33. In King v. Second National Bank and Trust Co., 173 So. 498 (Ala. 1937) a judgment in favor of the defendant in a suit for malicious prosecution was affirmed. The
defendant had reported to the grand jury the commission of a crime, furnished the
names of witnesses, and stated that the guilty parties were the plaintiffs here. The
court said: "Public policy demands that the citizen, without hazard to himself, may
freely bring before the grand jury the fact that a crime has been committed, request
an investigation, and furnish such information as he has . . . He is merely performing a
duty in aid of the tribunal set up to ascertain whether there is probable cause to believe
a crime has been committed. . . ." See Heacock v. State, 13 Tex. App. 97 (1882) and
State v. Millain, 3 Nev. 371 (1867).
34. Hitzelberger v. State, 173 Md. 435, 196 At]. 288 (1938) ; Commonwealth v. McNary,
246 Mass. 46, 140 N.E. 255 (1923).
35. This is a statutory offense in the federal courts. 35 STAT. 1113 (1909), 18 U.S.C.A.
§241 (1927); Duke v. U.S., 90 F.2d 840 (4th Cir. 1937). The same result by judicial
decision can be seen in McNair's Petition, 324 Pa. 48, 187 Ati. 198 (1937).
1953]
THE GRAND JURY
senting information pertinent to the activities of public officials, as distinguished from information concerning the private citizen. It can be argued
that offenses concerning private citizens can be adequately prosecuted without
direct access to the grand jury. The grand jury, however, is the only arm of
the judicial system in an adequate position to investigate public officers, since
the normal activities of3 the
police and magistrates lack the breadth necessary
6
for such investigations.
In Illinois, the right of an individual to communicate with a grand jury,
or in a sense to act as a "private prosecutor," was thought to exist after
People ex rel. FerriZl v. Graydon,37 which set forth the general principle that a
grand jury was free to obtain information from any source whatsoever. (The
same case indicates that the grand jury in Illinois is still endowed with the
power to set the wheels of justice into motion regardless of the wishes of
the public prosecutor.) However, in People v. Parker8 the Illinois Supreme
Court held that any communication with the grand jury is contempt. In
this particular case, however, the communication was clearly one of malice
and personal enmity.3 9
In a second prosecution against the same defendant, Parker,40 the Illinois
Supreme Court seems to establish a definite rule that any private communication with the grand jury, except through recognized channels, will be
considered as an attempt to incite them to action, and therefore is a contempt of court. Thus, the hope that prevailed after the first Parker case
that the court would limit its ruling to a situation where the communication
was prompted by malice met with a disappointment. The second Parker case
was taken to the United States Supreme Court where the petitioner claimed
that the Illinois ruling deprived him of his right to freedom of religion and
freedom of speech. The Supreme Court affirmed the judgment of contempt
in a per curiam opinion, the court splitting four to four on the merits of the
case.4 ' It would appear that the common law rule has thus been modified by
judicial decision in the state of Illinois.
Public-Spirited Communications:
It does not follow from either of the Parker cases, even by dicta, that
communications by public spirited groups informing the grand jurors of
their powers and duties should fall within the ruling of these cases. Query,
does the recently enacted "Secrecy Statute" 42 tend to include this type of
action? This Illinois statute prevents a grand juror from communicating
with any person concerning "any matter which the jury has considered, is
considering, or is about to consider, except that he may communicate on such
36. People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330 (1906).
37. 333 Ill.
429, 164 N.E. 832 (1929).
38. 374 Ill.
524, 30 N.E. 2d 11 (1940), cert. denied, 313 U.S. 560 (1941). See Fremon,
Private Communications With Grand Juries, 38 J. Crim. L. & Criminology, 43 (1947).
39. In this case the defendant had addressed two letters to the Cook County grand jury
charging the publisher of the Chicago Tribune and various public officials with a conspiracy to steal large sums of money which were allegedly due in unpaid taxes and
penalties. The Illinois Supreme Court said the language used was "vicious and inflammatory."
40. People v. Parker, 397 Ill.
305, 74 N.E. 2d 523 (1947), afPd, 68 Sup. Ct. 1082 (1948).
In this case Parker made the same accusations against the same individuals by letter
to the grand jury, but he phrased it more moderately, and he purported to sign it as
an officer of the Puritan Church carrying forth church duties.
41. People v. Parker, 68 Sup. Ct. 1082 (1948).
42. ILL. Ray. STAT. c. 38, §720 (1951).
THE GRAND JURY
[Vol. 44
matters with officers of the court, other grand jurors, and witnesses during
regular sessions of the grand jury." It is difficult to see how this statute
does any more than codify the common law requirement of secrecy in all
grand jury proceedings,4 3 and to limit the investigative activity by an individual grand juror. It would seemingly have no effect upon a public
spirited communication, especially if this communication were made at the
beginning of the graiid jury term and thus prior to the time that particular
matters were presented for their consideration.
The right to communicate with grand jurors to inform them of their powers
and duties has never been the subject of judicial decision in Illinois. In Ex
Parte Pease,44 a Texas case, contempt charges were brought for submitting
an impersonal editorial entitled "Grand Juries" to the panel. The case was
dismissed with these words: "We confess ourselves unable to find anything
which might not have been appropriately read to this grand jury by any
judge of any court upon their empanelment." An Indiana case, Cheadle v.
State, 45 reached the same result. In considering how Illinois might approach
4 6
this problem it is necessary to observe the decision of People v. Jordan.
In that case, the question presented was whether an indictment was invalid
because the grand jury was instructed by someone other than the judge. The
court upheld the indictment, saying that the defendants would have to show
they were prejudiced by the variation in the manner of instructing. It is
possible that instructions sent to the grand jury might be attacked in a
similar manner, but if the instructions do not refer to any particular grand
jury and are purely for a general public spirited purpose, the same result
as that reached in the Jordan case should follow. It is interesting to note
that New York has an organization known as the Grand Jury Association
which furnishes a booklet to all grand jurors outlining the powers of the
panel. This organization's activities have never been directly challenged and
its booklets have become a well established method of educating each grand
47
juror.
43.
The general rule of secrecy and that which is followed in Illinois is summed up in
People v. Goldberg, 302 Ill. 559, 135 N.E. 84 (1922). It is stated as follows: "In furtherance of justice and upon grounds of public policy the law requires that grand jury proceedings shall be regarded as privileged communications and that the secrets of the grand
jury room shall not be revealed. The reasons usually given for this requirement are to
prevent the escape of the accused, to secure freedom of deliberation and opinion among the
jurors, and to prevent the testimony produced before them from being contradicted
at the trial by subornation or perjury . . . the rule of secrecy concerning matters transpiring in the grand jury room is not designed for the protection of the witnesses before
the grand jury but for the protection of grand jurors and in furtherance of public justice.
A witness has no privilege to have his testimony treated as a confidential communciation
but must be considered as testifying under all the obligations of an oath in a judicial
proceeding, and hence his testimony may be disclosed whenever it becomes material to the
administration of justice."
Tlie policy reasons behind the secrecy requirement are met when there is an indictment,
the accused is in custody, and the grand jury is discharged. Note, 27 N.Y.U.L. Rev. 319
(1952), dealing with a movement towards relaxation of the common law rule of grand
jury secrecy.
44. 57 S.W. 2d 575 (Tex. 1933).
45. 110 Ind. 201, 11 N.E. 426 (1887).
46. 292 Ill.514, 127 N.E. 117 (1920).
jury instead of the judge.
Here the state's attorney instructed
the grand
47. People v. Shea, 147 N.Y. 78, 41 N.E. 505 (1895), where certain persons had
distributed to each member of the grand jury a letter informing them of their duties.
The court refused to dismiss the indictment. See People v. Sellnick, 4 N. Y. Cr. Rep. 329
(188), where the court distinguishes between communications seeking to bring about an
indictment and one giving instructions on powers and duties.
19531
THE GRAND JURY
Investigative Power:
Even though Illinois limits the source from which the grand jury may
obtain information, there is nothing to prevent the grand jury in Illinois
from taking the reins into its own hands and latnching its own investigation.
Should the prosecutor prove uncooperative, the grand jury apparently may
exclude him from the hearings and proceed independently.4 8 Should he refuse
to issue subpoenas or to draft the required hills of indictment, the grand jury
may ask the court to order him to do their bidding, or to appoint a special
prosecutor. 49 On the other hand, Pennsylvania by judicial decision, has
limited the grand jury in its power to proceed upon an investigation in the
absence of direction (i.e., a specific charge) by the court.50 In that state if
the jury desires to inquire into something not previously brought before them,
they must bring it to the court's attention first. Then the court in its discretion, by a charge of the specific condition, may convert the grand jury
into an inquisitorial body and the grand jury investigation may proceed.
It is this common law power to launch its own investigation which makes
the grand jury today a very effective weapon against organized crime and
large scale corruption. The grand jury does not encounter the obstacles that
other investigative arms of law enforcement do. It has the duty to inquire
into a1l crimes committed within the jurisdiction and consequently questions
as to scope of inquiry are seldom raised. A witness coming before the grand
jury need not be informed of any specific case or charge, 51 thus questions
in issue.5 2
of relevancy to the matters under investigation are seldom put
The United States Supreme Court, in Blair v. United ,States,53 held that a
witness may not contest the validity of the statute creating the crime under
inquiry, nor may he challenge the authority or jurisdiction of the grand jury.
A practical difference between an investigation before the grand jury' and an
investigation before some other person .or body is that in the former the
witness is not entitled to counsel to interrupt the smooth procedure of the
investigation. The grand jury proceedings are behind closed doors, which
results in a calm inquiry as compared with the tumult which can develop in
other criminal investigations.
Obstructive Tactics:
Perjury and contempt charges for obstructive tactics before the grand
jury are controlled somewhat by the materiality of the questions which are
asked before the grand jury. The role of materiality is one of great flexibility
in subsequent proceedings for contempt or perjury. 54 It is upon this issue
48. Matter of the District Attorney's Relation to the Grand Jury, 14 N. Y. Cr. 431
(1900). Other states have removed this common law power of dominance over the
prosecutor by statute.
49. An example of such an occurrence is described in the N. Y. Times, Jan. 24, 1932,
§3, p. 6. See also Wilkes, A History Making Grand Jury, 13 THE PANEL 9 (1935) relating
to the appointment of Dewey as a special _prosecutor.
50. McCullough v. Commonwealth, 67 Pa. 30 (1870); Commonwealth v. Greeh, 126 Pa.
531, 17 At. 878 (1889). However, in Pefinsylvanmh, a preliininty hearing befoke a
Magistrate which follows in a specific charge to the grand jury is not necessary where
the offense is one of public notoriety or where it is an offense within the knowledge of the
grand jurors themselves.
51. Matter of Black, 47 F.2d 542 (2d Cir. 1931); Hale v. Henkel, 201 U.S. 43 (1906);
Note, 6 COL. L. REv, 347 (1906).
52. Ex Parte Butt, 78 Ark. 262, 93 S.W. 992 (1906).
53. 250 U.S. 273 (1919).
54. A thorough discussion of the place of materiality in grand jury proceedings
THE GRAND JURY
[Vol. 44
that judicial control may be properly placed upon the scope of the inquisitorial power of the grand jury. 55 It is not a function of the grand jury to
harass members of the community; therefore, it has been held that a question
56
as to whether a witness knows of the commission of any crime is immaterial.
However, those courts which have limited the scope of the investigation by
57reliance on the issue of materiality fail to set down any specific standard.
Other courts have disregarded materiality and thus have placed no boundary
on the scope of the investigation. Such a view is exemplified in Garrol v.
United States :58
"Its (the grand jury's) investigation and full duty is not performed
unless and until every clue has been run down and all witnesses searched
for and examined in every proper way to find if a crime has been committed, and to charge the proper person with the commission thereof. Its
investigation proceeds step by step. A false statement by a witness in
any of the steps, though not relevant in an essential sense to the ultimate
issues pending before the grand jury, may be material, in that it tends
to influence or impede the course of the investigation."
Seemingly, where any subsequent action is brought against a witness, either
in the form of a prosecution for perjury or by the exercise of the summary
power of contempt, it should be limited to those cases where the behavior of
the witness was insulting or frivolous. It should not develop into a third
degree method at the option of the inquisitors. On the other hand, invoking
the summary power of contempt is a proper means of exerting pressure upon
a witness who is hindering the inquiry by falsehoods or evasive answers. 59
Illinois seems to be in accord with this view, since it has been held that
materiality need not 60necessarily be in issue when the summary power of
contempt is exercised.
III
THE
GRAND
JURY AND
THE PRIVILEGE AGAINST SELF-INCRIMINATION
Although the grand jury is not as susceptible to obstructive tactics as
other investigative agencies, its power must be considered in the light of a
basic premise of Anglo-American law which guarantees individuals a privilege
against self-incrimination. The ordinary witness before the grand jury may
invoke this privilege when a question requires an incriminating answer.
However, it would seem that a suspect before the grand jury is in the same
position as a suspect before a magistrate pursuant to a complaint, and thus
will be found in Dession and Cohen, The 17iquisitorial Functions of the Grand Juriel, 41
YALE L. J. 701, 702 (1932).
55. Cases in which broad investigations have been allowed and not defeated by
questions of materiality are exemplified by State v. Wakefield, 73 Mo. 549 (1881); State
v. Turley, 153 Ind. 345, 55 N.E. 30 (1889) ; People v. Howland, 63 Colo. 414, 167 Pac. 961
(1917)-; Nelson v. U.S., 201 U.S. 92 (1905).
A limiting effect upon the scope of the inquiry
can be seen in Clayton v. U.S., 284 Fed. 537 (4th cir. 1923).
56. State v. McCormick, 52 Ind. 169 (1875).
57.
58.
Brzezinski v. U.S., 198 Fed. 65 (2d Cir. 1912).
See Note, 40 HARv. L.R. 780 (1927).
16 F.2d 951, 953 (2d Cir. 1927).
59. Loubriel v. U.S., 9 F.2d 807 (2d Cir. 1926); O'Connell v. U.S., 40 F.2d 201 (2d
Cir. 1930).
60.
People v. Sheridan, 349 Ill. 202, 181 N.E. 617 (1932) upholding contempt proceedings
against a witness for evasive answers before the grand jury. See the discussion in People
v. Freeman, 256 Ill. App. 233, (1930) on the issue of materiality. However, it should be
noted that this case did not involve contempt proceedings arising out of a grand jury
hearing, therefore, there is a question as to whether this case is authority for contempt proceedings arising out of such action.
i9531
THE GRAND JURY
would be entitled to refuse to answer all question 61 At that time he may
exercise the privilege just as if he were on trial. It has been held that if a
particular person is charged with a crime before a committing magistrate
62
Other
and is subjected to questioning, the resulting indictment is invalid.
jurisdictions have modified this rule and allow a suspect to be questioned
63
even after he is formally accused, if he is warned that he need not testify,
or even without warning if he makes no objection."
Unlike the grand jury proceedings where specific charges have been made
of a crime, the broad inquisitorial proceeding's success rests upon the right
to call all persons with knowledge of the particular circumstances under
inquiry, whether they are suspects or not. Query, may a recognized suspect
be called under the guise of a "John Doe" inquiry, and thus by the broad
scope of the investigation deprive the suspect of his constitutional privilege
against self-incrimination?
The problem has been handled in various ways. In California, a police
captain appeared in response to a subpoena, but refused to be sworn as a
witness in a grand jury investigation involving alleged corruption in the
police department. He contended that as a potential defendant, he had a
constitutional right not to be sworn. The court upheld a contempt proceeding,
saying that his status was that of a witness and he could not claim the privilege
65
until an answer to a particular question would tend to incriminate him.
The court seemed to be of the view that in broad grand jury investigations the
66
privilege of an ordinary witness is sufficient. In United States v. Kimball
the court approached the problem by refusing to consider the cover-up effect
facing the privilege issue
of the grand jury action. Other courts also avoid 67
by dismissing the case on procedural technicalitieS.
Illinois apparently follows the view that an indictment will be quashed
if a potential defendant is examined before the' grand jury. This was the
holding of Boone v. People, 68 but in that case the defendant was the only
witness examined before the grand jury. Whether Illinois would follow the
general principle of the Boone case in a less clear-cut fact situation (i.e.,
where many witnesses have been called to testify) is not known. Illinois'
attitude towards the scope of the privilege of an ordinary witness might shed
some light on the question. In People v. Spain69 it was held that a witness
need not answer a question upon which there is some doubt as to whether
it calls for an incriminating answer. This conflicts with the general view that
the privilege cannot be exercised unless the question clearly calls for an incriminating answer. 70 The danger from the answer must be real and appreqiable as distinguished from a mere possibility. The liberal view in Illinois
upon this point might indicate that the Illinois court would look with disfavor
61. 8 WGMORE, EvIDENCE §2252c (3d ed. 1940).
62. State v. Smith, 56 S.D. 238, 228 N.W. 240 (1929); State ex rel. Poach v. Sly, 63
S.D. 162, 257 N.W. 113 (1934).
63. State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185 (1935).
64. Frost v. Commonwealth, 258 Ky. 709, 81 S.W.2d 583 (1935); Note, 29 IowA L.R.
373 (1944).
65. In re Leiciin, 59 P,2d 213 (Cal, 1936);
66. 117 Fed. 156 (S.D. N.Y. 1902). Accord: People v. Lauder, 82 Mich. 109, 46 N.W.
956 (1890).
Here the case was dismissed because the
67. State v. Andersen, 10 Ore. 448 (1882).
objection was not raised properly, but the privilege issue was in the background.
_48 Ill. 440, 36 N.E. 99 (1894).
68.
69. 307 I1. 2893, 138 N.E. 614 (1923).
70. Heicke v. U.S., 927 U.S. 131 (1913) which represents the general rule.
THE GRA4ND JURY
[Vol. 44
upon any infringement of the privilege against self-incrimination by a "John
Doe" inquiry of the grand jury.
To partially alleviate the difficulties which result from an ordinary witness'
claim of privilege, and consequent stagnation of the investigation of the
accused before the grand jury, the following statute was adopted by the
present session of the Illinois Legislature:
"Whenever, in any investigation before a grand jury or trial in a court
of record of any person charged with a criminal offense (either felony
or misdemeanor) it shall appear to the court that any person called as a
witness in behalf of the prosecution is a material witness and that his
testimony or any evidence he may produce, documentary or otherwise
would tend to incriminate him, on motion of the State's Attorney the
court may cause an order to be entered of record that such witness be
released from all liability to be prosecuted or punished on account of any
transaction, matter or thing concerning which he may be required to
testify or produce evidence, documentary or otherwise; and such order
shall forever after be a bar to any indictment, information or prosecution
against the witness for any felony or misdemeanor shown in whole or
part by such testimony or evidence, documentary or otherwise, except
for perjury committed in the giving of such testimony; provided however,
that the court shall deny a motion of a State's Attorney made under this
section and shall not enter an order releasing such witness from such
liability if it shall reasonably appear to the court that such testimony or
evidence, documentary or otherwise would subject such witness to an
indictment, information or prosecution (except for perjury committed in
the giving of such testimony), under the laws of another State or of the
Any witness, who, having been granted immunity as
United States; ....
aforesaid, refuses to testify or produce evidence documentary or otherwise, may be punished for contempt of the court and sentenced to the
county jail for not more than two years." 7 1
The intention of this section is summed up by the Chicago Crime Commission
in this manner: "At times the prosecuting attorney would be very materially
aided in his efforts to apprehend and convict the 'higher-ups' in crime if he
were able to guarantee immunity from prosecution to the less serious offender
and thereby make available to the grand jury or court whatever evidence
. 7.
the immune offender may possess .
A difficulty which is apparent upon the face of this statute is that the
initiation of any grant of immunity is by motion of the State's Attorney.
If an investigation involves public officials, or if the state's attorney is"not
cooperative, the usefulness of the new section might be severely limited.
Placing the success of the grand jury proceedings in the hands of the prosecutor is contrary to the basic nature of this institution. The state's attorney
may be a helpful arm of the grand jury, but it is the grand jury itself which
should determine the important movements.
Another possible difficulty in the statute is that it might be subjected to
a narrow interpretation in its application to proceedings before the grand
jury. The statute applies "in any investigation before a grand jury or trial
in a court of record of any person charged with a criminal offense. . . ." If
the words "of any person charged" are considered referable to the grand
71. ILL. REv. STAT. c. 38, §274 (1953).
72. Stated in a circular distributed by the Chicago Crime Commission to members of
the Illinois Legislature.
1953]
THE GRAND JURY
jury proceedings then, seemingly, immunity could only be granted when the
organization is considering an indictment of particular individuals. If this
were true then the statute would not be available in a "John Doe" inquiry
where there is a broad investigation of criminal conditions, Any such limitation
was certainly not the intention of the proponents of the legislation.
IV
THE POWER OF PRESENTM1ENT AND THE POWER OF REPORTING
Closely aligned to the grand jury's broad inquisitorial power is its power
of presentment. The presentment, in its true sense, like an indictment,
73
It
charges the commission of a crime and designates the persons accused.
differs from the indictment in that it results from the grand jury's initiation.7'
The presentment might be termed instructions for an indictment. In our
modern system it has lost much of its practical importance, since a prosecutor
is available to the grand jury at all times for the purpose of framing indictments. It would be a rare instance today that the power of presentment would
have to be distinguished from the indictment, but in a technical sense the
presentment is a result of the grand jury's investigation in solo.
At common law the grand jury was vested with the power to make presentments and to conduct the necessary investigations to uncover evidence
to support them. 75 However, even in light of this common law power the
question has arisen as to whether the grand jury may summon witnesses prior
to the time that it is directed by the court to inquire into a specific crime (i.e.
given a specific charge). Pennsylvania and North Carolina have repudiated
this power by judicial decision.76 The federal courts have allowed the practice
of interrogating witnesses before the presentment is made, and the subpoena is
sufficient if it informs the witness of the names of the parties with respect to
whom they will be asked to testify.7 7 Missouri has held that, without stating
in the subpoena in what particular matter or cause they were to testify, the
grand jury
might subpoena witnesses to appear before them to testify
78
generally.
The proposition that the grand jury may form a presentment upon facts
within its own knowledge seems to be undisputed,7 9 except in those jurisdictions which require that a grand jury can act upon no. offense until it is
brought to the attention of a magistrate.80
It would seem to follow from Illinois' leading case upon the powers of the
73. 1 HOLDWORTH, HIsToRy OF ENGLISH LAW 321 (4th ed. 1931).
74.. Dession and Cohen, suara note 54 at 705; 1 CHrrry, CRIMINAL LAW 110 (1819). In
some jurisdictions the meaning of a presentment has been modified by statute.
75. See the discussions of the ancient powers of the grand jury in Hale v. Henkel, 201
U.S. 43 (1906); State v. Wilcox, 1044 N.C. 84-7, 10 S.E. 453 (1889); Alexander, The Grand
Jury, 16 THE PANEL 1, 3 (1938).
76. Petition of McNair, 324 Pa. 48, 187 At]. 498 (1936); Lewis v. Commissioners, 74
N.C. 194 (1876), holding that the grand jury had no power to summon witnesses to "..
enable that body to ascertain whether the witness knew of any violation of the criminal
law... ." Accord: State v. Wilcox, 104 N.C. 847, 10 S.E. 453 (1889).
77. Hale v. Henkel, 201 U.S, 43 (1906); Blair v, U.S., 250 U,S, 97 (1919); United
States v. Philadelphia and R. Ry., 225 Fed. 301 (E.D. Pa. 1915).
78. Ward v. State, 2 Mo. 120 (1829) ; State v. Terry, 30 Mo. 968 (1860) holding that
a witness may be asked whether he knows of the violation of any criminal law.
79. 2 WHARTON, CRIMINAL PROCEDURE §1264 (10th ed. 1918); Irwin v. Murphy, 129
Cal. App. 713, 19 P.2d 292 (1933); Coblentz v. State, 164 Md. 558, 166 At. 45 (1933);
In re Jones, 101 App. Div. 55, 92 N.Y. Supp. 275 (2d Dept. 1905); State v. Lee, 87 Tenn.
114, 9 S.W. 425 (1888).
80. See note 50 su7pra.
THE GRAND JURY
[Vol. 44
grand jury, People ex rel. FerrilZ v. Graydon,81 that the Illinois grand jury
may form a presentment upon the testimony of witnesses who were called to
testify generally. This opinion endows the Illinois grand jury with all the
common law powers of the institution. It further states that it is not within
the power of the courts to interfere with the grand jury-any
82 restraint upon
its common law powers must follow from legislative action.
The power of presentment is sometimes confused with a custom that has
developed in some jurisdictions for the grand jury from time to time to make
a report upon the general conditions of the region in which it sits. 83 No
mention is made at common law of a grand jury extending its power of presentment as a means of making this report. The report is chiefly a commentary upon newsworthy information. Since the primary objective of a
grand jury is to expose crime, the grand jury is in a less favourable position
to fulfill this objective when conditions do not warrant a presentment or
indictment.8 4 Reports are not intended to serve as the basis for indictments.
Reports are made as a matter of public convenience and in a sense as a
method of by-passing the required secrecy of grand jury proceedings.
Those reports which address themselves to general conditions or impersonal
broadsides do not raise any problems. However, when the grand jury censures
a particular individual, the question arises as to whether this is a fair weapon
to give the grand jury. The courts have allowed an aggrieved subject of a
grand jury report several remedies. In Matter of Gardiner,85 by motion the
report was expunged from the record since it implied that the district attorney had committed a crime. In a later case in New York, Matter of Jones, 86
a report censuring the board of supervisors was not set aside. However, by
way of dictum, the court said that if the grand jury actually accused an
individual in a report when an indictment was in order, thereby leaving him
powerless to answer, then the report would be expunged. A strong dissent
in this case stated that the grand jury had no power to make such reports,
it being their duty to indict or take no action at all. It would seem that the
courts of New York are now following the dissent and granting motions to
expunge. 87 The courts of Maryland and Wisconsin have also reversed cases
on appeal for refusal to expunge reports dealing with particular individuals.88
Other courts leave the matter entirely to the discretion of the lower court,
and jurisdiction to review these holdings is denied.89 In at least one jurisdiction, when such a circumstance occurs, mandamus will issue without regard
to whether the act of the lower court was ministerial or judicial. 90
Another possible remedy is a suit for libel based upon the report. A
81. 333 Ill. 429, 164 N.E. 832 (1928).
82. The "Secrecy Statute" limits the power of the grand jury to conduct investigations
themselves since they are forbidden to communicate with any one except certain specific
individuals during their term.
83:' Note, 22 A.L.R. 1356, 1357 (1923).
84. In re Healy, 161 Misc. 582, 293 N.Y. Supp. 584 (Queens Co. Ct. 1937) ; State v.
Bramlett, 166 S.C. 323, 164 S.E. 873 (1932).
85. 31 Misc. 364, 64 N.Y. Supp. 760 (Gen. Sess. 1900).
86. 101 App. Div. 55, 92 N.Y. Supp. 275 (2d Dept. 1905).
87. Matter of Osborne, 68 Misc. 597, 125 N.Y. Supp. 313 (Sup. Ct. 1910) and a comment
by Medalie, Grand Jury Investigations, 7 THE PANEL 5 (1929).
88. Matter of Report of Grand Jury of Baltimore City, 152 Md. 616, 137 At. 370 (1927);
Matter of Grand Jury Report, 235 N.W. 789 (Wis. 1931).
89. State ex rel. Lashly v. Wurdeman, 187 S.W. 257 (Mo. 1916) ; State ex rel. Weber
v. McFadden, 46 Nev. 1, 205 Pac. 594 (1922).
90. Oakman v. Recorder of City of Detroit, 207 Mich.
15,
173
However this report was made by a statutory "one man" grand jury.
N.W.
346
(1919).
19SS]
THE GRAND JURY
Mlichigan case, Bennett v. Stockwell, 91 held that a qualified privilege did not
attach to a report which had been expunged from the record. The question
of good faith would merely go to the mitigation of damages. However, other
courts, even if they do not recognize the power to make reports, seem to
recognize a qualified privilege when the reports are made. This is exemplified
by the Iowa case of Rector v. Smith92 in which a grand juror was sued for
libel. Although the court did not seem to favor the report, it stated that since
the publication was made in the discharge of a public duty and without illwill toward the plaintiff, the libel action could not be maintained.
When a libel action is brought against a newspaper which has republished
the report, the rule seems to be that the newspaper stands in the shoes of the
grand juror. 93 However, some cases hold that the press always has a qualified
these circumstances since it is fair comment on a judicial
privilege under
94
proceeding.
Although the power of reporting does not reach as far back in history as the
other powers of the grant jury, it is a custom which has prevailed in our
country since colonial times. 95 In Illinois this method of reporting, even if
limited to general conditions, could serve a very useful purpose. If nothing
else, the report would be of assistance to the next grand jury by pointing out
the conditions which had been observed generally by the preceding one. It
would be advisable in Illinois, however, to take a pessimistic view and warn
the grand jurors to refrain from naming specific individuals in any report.
V
PROBLEMS
IN
Gn-kn JuRy INVEsTIGATION
Thus far only the powers of the grand jury have been observed and not
the difficulties which ensue when the powers are invoked. In investigating a
particular incident the regular grand jury may be equipped to operate
independently. However, lack of funds and expert assistance is a serious
obstacle when a grand jury proceeds independently to investigate in a matter
of considerable scope. Under the old English system it is not likely that the
problem arose, since the community was small and the jurors could act upon
their own knowledge and investigative activities. However, in modern times
instances have arisen where the grand jury has employed private detectives,
accountants, and counsel. 96 In each case dealing with this problem, absent
91. 197 Mich. 50, 163 N.W. 482 (1917). See Note, 2 MINN. L. REv. 154 (1918).
92. 11 Iowa 302 (1860).
93. Ferguson v. Houston Press, 1 S.W. 2d 387 (Tex. Civ. App. 1927).
94. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 61 So. 345 (1913). The
privilege was granted with the following reservations: ". . . (1) that libelous imputations
in a grand jury's report upon private citizens, or upon public officers, not touching their
fitness for office or their fidelity to the public service, or their propriety of their official
acts, are not properly matters of public interest; (2) that the privilege does not attach
at all until the report has been duly published by the grand jury itself in open court; and
(3) that matters, the publication of which is forbidden by law, or by order of the court
as being improper for publication are not to be regarded as privileged with respect to their
publication by a third person." Parsons v. Age-Herald Pub. Co., supra at 448, 61 So. at 349.
95. "It appears to have been common practice for grand juries gathered at the capital
to express their opinions on things in general, and on the administration of the royal
governor in particular. It was an advantage, therefore, for the Governor to have a group
chosen who would be counted on to pass a laudatory resolution which he could modestly
forward to the Board of Trade as an indication of public opinion." ScoT, CRIMINAL LAW
IN COLONIAL VIRGINIA 70 (1930).
96. Note, 7 MINN. L.R. 59 (1922); Note, 26 A.L.R. 605 (1923); Note, 12 MINN. L.R.
76:1 (1928).
THE GR4ND JURY
[Vol. 44
unusual statutory provisions giving a grand jury such power, such action has
been held unauthorized. The theory behind the deeisions seems to be that
it is against public policy in that the grand jury would be prejudiced in favor
of its own investigative agency.9 7 A further reason given is that statutes
prescribe upon whom the duty shall fall to ferret out evidence of crime, and
such statutory provisions impliedly negate a power in a grand jury to designate
a private agency. 98 The view courts have taken upon this subject seemingly
is contrary to the previously discussed broad powers of the grand jury. If
it is within their power to summon a competent witness to substantiate a
mere belief held by the grand jury, it certainly would seem that they could
rely upon an experienced investigator in the field of inquiry. It has been
held that it is appropriate for the grand jury to rely upon investigations made
by proper public officials. 99 Especially in a large community it is impossible
for the grand jury to make its own investigation, and since it is the grand
jury's duty to make a diligent inquiry, it would seem that the practice of
obtaining outside aid would merely be carrying forth the basic function of
the grand jury. 0 0 It has been said that activation of the grand jury's inquisitorial power evolves from political conditions. If this is true, and a
situation should arise where a possibility exists that the ones upon whom the
official duty lies to collect evidence are corrupt, then the very preservation
of the basic function of the grand jury might lie in looking elsewhere for
aid.101
Another obstacle is the lack of time which a grand jury would have to
devote to an independent investigation. For instance, the regular grand jury
of New York devotes to its work but five mornings a week, of two hours each,
02
for one month. Of necessity most of this time is occupied with routine.
Illinois is faced with this same problem. The terms of grand juries in Illinois
are gauged to the terms of the various circuit courts. 10 3 The term in some
counties is six months and until recently only one month in Cook County.
Attempts to extend the grand jury beyond the statutory time have met
with difficulty. In People v. Cochrane,'0 4 the Illinois Supreme Court passed
upon the legality of acts done by a grand jury during a term subsequent to
its original term. The court held that holding the grand jury over was
error, but that the grand jury was not without jurisdiction since it became
a grand jury de facto. The dictum of the decision leaves an inference that
although the legality of the grand jury could not be raised upon a writ of
error, it could have been raised earlier upon a motion to quash the indictment.
Shortly after the Cochrane case the Illinois supreme court heard People v.
97.
Burns International Detective Agency v. Doyle, 46 Nev. 91, 208 Pac. 427 (1922).
98. Allen v. Payne, 1 Cal. 2d 607, 36 P.2d 614 (1934). It has .been held that such practice
is unauthorized even if the expense is borne by the grand jurors. People v. Kempley,
265 Pac. 310 (Cal. App. 1928). Such a viewpoint would also indicate disfavor if the
invesilgative aid came from a public spirited organization which had investigators at
their disposal.
99. Woody v. Peairs, 35 Cal. App. 533, 556, 170 Pac. 660, 661 (1917).
100. Seemingly, the Illinois "Secrecy Statute" would prevent individual investigation
on the part of the grand juror and further it is submitted that this statute would stymie
any gratuitous investigative aid for the benefit of the grand jury by such an organization
as the Chicago Crime Commission. See note 42 supra.
101. The argument that a hired investigator might prejudice the grand jury does not
carry much weight in light of the general principle that bias or prejudice of a grand
jury is not sufficient grounds upon which to quash an indictment. See note 23 supra.
102. Dession and Cohen, supra note 54, at 698.
103.
ILL. REv. STAT. c. 78, §9
104.
307 I1. 126, 138 N.E. 291 (1923).
(1951).
1953]
THE GRAND JURY
Brautigan.10 5 The facts were similar to the Cochrane case with the important
additional fact that a grand jury de jure was in existence at the same time
as the hold-over grand jury. The court said: "At common law the grand jury
expired with the term, and no statute has changed this rule or authorized
any court to continue a grand jury beyond the adjournment of the term.
Therefore the grand jury's authority ceased on the last day of the August
term with the adjournment of the court, and the order purporting to extend
its powers was void."' 106 The effect of the decision is to say that a continued
grand jury cannot become a grand jury de facto while a grand jury de jure
is performing its duties.
At the present time the revised statute, which was sponsored by the Chicago
Crime Commission, allows Cook County to extend the term of the grand jury
to no longer than three months upon the recommendation of the grand jury,
or the state's attorney, or upon the court's own motion.' 0 7 This statute represents some improvement in the Cook County situation, but is still an inadequate
amount of time for a Ifull scale investigation of organized crime.
A solution to the problem of time is present in many jurisdictions and is
embodied in a statute in the state of Illinois. This is the power of the court
to call a special grand jury. 0 8 The Brautigan,case explains that under common law the court's power to summon a special grand jury is limited to cases
in which offenses are committed after the regular grand jury has been discharged or when the offender is arrested after the discharge of the regular
grand jury.10 9 However, in the Graydon case it was held that the common
law form of special grand jury has been abolished in Illinois and replaced
by a statutory form. This latter form is not limited as the common law
special grand jury was. Now the special grand jury may be impaneled at
any time public justice requires it, regardless of .whether the regular grand
jury is in session or not." 0 It would seem to follow that since the special
grand jury in Illinois is not limited by common law principles, it therefore is
not limited in its existence to the term of the court, but may continue in
session until its mission is accomplished. This also raises the question of
whether the special grand jury is endowed with the vast inquisitorial powers
of the regular common law grand jury since the special grand jury is of
statutory origin. It is safe to assume from the Graydon case that these powers
do exist and that the courts will not interfere with them since the legislature has not seen fit to limit the functions of the special grand jury by
statute. Possibly the power of reporting which is vested in the regular grand
jury might be used to force the empaneling of special grand juries. If the
regular grand jury has found that certain conditions of widespread corruption
exist, but that there is insufficient time to thoroughly investigate the conditions,
the jury might explain this in its report and suggest that a special grand
jury be called to carry forth upon the particular broad inquiry.
105. 310 Il1. 472, 142 N.E. 208 (1924).
106. Id. at 478, 142 N.E. at 214.
107. ILL. REV. STAT. c. 78, §9 (1951).
108. ILL. REV. STAT. c. 78, §19 (1951). In People v. Feinberg, 348 I1. 549, 181 N.E. 437
(1932) it is stated that only a circuit court judge assigned to the Criminal Court of Cook
County can call a special grand jury.
109. It is further stated in the Brautigan case that a hold-over grand jury does not
become a special grand jury, since the latter must be impaneled in accordance with the
statute.
110. ILL. RaV. STAT. c. 78, §19 (1951).
THE GRAND JURY
[Vol. 44
VI
PROPOSED MANUAL FOR GRAND
JURORS
Attacks have been made upon the grand jury, even to the extent of
advocating its abolition. If the institution has become a mere "fifth wheel
in the judicial machinery" it is a result of a lack of understanding of the
broad powers which exist in the grand jury. When such a situation exists
a portion of the blame should be placed upon the courts for failing to
inform the jurors of the true nature of their obligation, thus leaving
them in the hands of the prosecuting attorney. Often the judiciary will
instruct the grand jury in a manner which is technically correct, but the
instructions will be tempered to discourage any really effective action
by that body. This is exemplified by a recent charge to the Cook County
Grand Jury:'"
"You have a perfect right, under the law, to make your own investigations, unaided by the court and unassisted by the prosecuting
attorney. It is the duty of the court to instruct you, and the court
desires to caution you, not to engage upon any inquiry without reasonable proof that evidence is obtained or will be obtained upon which
to act in your capacity as Grand Jurors."
It was further stated in the same charge that a grand jury's duties "do
not contemplate investigation of problems generally" and that in the
Chicago area there are frequent attempts to "investigate certain situations" which are "wasteful, costly and harmful and bring no results".
The basic solution to any problem that exists is to inform the grand
jurors of their position in a manner that will impress upon their minds
just what their true functions are. This can be accomplished by a combination of two methods. First, by the use of better and more impressive
instructions by the court. Second, by the use of a printed manual which
the jurors would have with them for study and reference throughout
their term of service. A grand jury manual should contain such information as that suggested in the following proposed manual. Although it is
designed specifically for11 2Illinois' grand jurors, it might serve as a pattern
for other jurisdictions.
GRAND JURY MANUAL
1.
coming
to us from the common law of
The grand jury is an institution
England, and dates back to the sixteenth century. It is a part of the
criminal law system of Illinois.
2.
In the State of Illinois, with certain exceptions, no person may be
prosecuted for a felony without an indictment presented by a grand jury.
111. In the Matter of Impanelling of the September, 1952, Grand Jury In The Criminal
Court of Cook County.
112. The Chicago Crime Commission has prepared and published a Manual for Grand
Jurors, which will be distributed to each grand juror at the beginning of his term of
service. Some of the research contained in this comment served as the basis of the Chicago
Crime Commission manual.
19S31
THE GRAND JURY
Therefore, the major portion of the Cook County Grand Jury's work will
consist of acting as the investigating and accusing body of all felonies
committed within the jurisdiction of the Criminal Court of Cook County.
3.
A grand jury consists of twenty-three persons. The presence of sixteen
is necessary for the transaction of grand jury business.
4.
It is the duty of the grand jury to not only investigate and accuse, but
to guard the rights of citizens by saving them from unfounded prosecutions.
5.
Grand jurors are selected by the jury commissioners (or in some counties
by the county board) regardless of sex and as evenly as possible from the
legal voters of the various towns or precincts in the county. They must have
the following qualifications:
(a) They shall be between the ages of 21 and 65 and not exempt from
jury service.
(b) They shall be in the possession of their natural faculties and not infirm or decrepit.
(c) They shall be of fair character, of approved integrity, of sound
judgment, well informed and must understand the English language.
(d) They must be inhabitants of the town or precinct from which they
are chosen.
-6.
The term of the grand jury is adjusted to the term of the circuit court.
It varies in Illinois from one to six months. In Cook County the regular
term, for a grand jury is one month, but this may be extended in one
month periods to a total of three months upon recommendation of the
state's attorney, the court, or the grand jury.
7.
If the grand jury is dismissed by the court before the end of its term,
it may be summoned again by the court during the period provided by
law in which they constitute the grand jury.,
8.
When in the opinion of a majority of the judges of any judicial circuit
it is not necessary to summon a grand jury, they may dispense with it
for that term or for any part of a term.
9.
Grand jurors are entitled to a fee of $5.00 per day plus mileage of
$1.20 for the term. These fees may be varied slightly by the county
boards.
10.
Before the grand jurors enter upon the discharge of their duties they
shall swear or affirm that they will perform their duties diligently in all
THE GRAND JURY
[Vol. 4
matters coming to their knowledge during their term of service and that
they will indict no person through malice, hatred or ill will, nor fail to
indict through fear, favor, or a promise of reward.
11.
After the grand jury is impaneled the court appoints a foreman whose
duty it is to swear or affirm witnesses testifying before the grand jury.
The foreman, when an indictment is found, indorses thereon "a true bill,"
or when the grand jury does not indict "not a true bill". In either case
he signs his name as foreman at the foot of the bill of indictment and in
the ease of a "true bill" the names of the witnesses thereon who gave
evidence in the proceedings before the grand jury. The foreman has the
duty to maintain order. He must also maintain a quorum and see to the
business-like conduct of the grand jury.
12.
After the grand jury is impaneled and sworn the court instructs the
jurors as to their powers and duties. The court must instruct every grand
jury upon the following points:
(a) They should investigate and report on violations of gambling statutes.
(b) That a committee of not less than three of their members shall
examine and report upon the iondition of the county jail.
(c) That a statute prohibits members of the grand jury communicating
with any person other than officers of the court, other grand jurors
or witnesses during their session.
(d) That a violation of that secrecy requirement is punishable under
the law.
13.
The grand jury may appoint one of their number to take minutes of the
proceedings which may be delivered to the state's attorney, if the grand
jury so directs. However, a complete record of the proceedings will be
kept by a court appointed stenographer.
14.
An indictment is an accusation in writing presented by a grand jury
to a competent court charging a person with a crime. The indictment is
a technical piece of pleading and consequently, is prepared by the state's
attorney after the grand jury reports to the state's attorney that an indictment has been found.
The indictment by a grand jury is limited to charges of a felony. A
felony is an offense punishable with death or by imprisonment in the
penitentiary.
An indictment is only a formal charge of a crime, and therefore, does
not require the degree of proof necessary for a conviction at a trial.
However, the grand jury should hear all evidence carefully and present
indictments only in cases when all the evidence before them, taken together, is such as in their best judgment would, if unexplained or uncontradicted, warrant a conviction by a trial court.
19531
THE GRAND JURY
15.
In finding a "true bill" (or as it is sometimes called, a bill of indictment)
at least 16 members of the grand jury shall be present, and at least 12
of them shall agree to the finding.
16.
A grand jury may find an indictment on the oath of one or more
witnesses, except that in cases of treason or perjury, at least two witnesses
to the same fact shall be necessary, except when the fact is proved by some
writing.
17.
No indictment for false imprisonment, or willful mischief shall be found
unless the name of the complaining witness is written on the bill by the
foreman with the consent of the state's attorney. An exception is made
to this requirement if the information came from at least two members of
the grand jury or from a public officer who obtained the information in
the discharge of his duty.
18.
An indictment shall be returned only upon legal evidence. Hearsay
evidence is generally not legal evidence. However, the grand jury is the
sole judge of the sufficiency of the evidence required to return a "true bill".
19.
No grand jury shall return an indictment based upon matters within
their own knowledge except upon information of at least two of their
members, unless the grand juror is sworn as a witness, in which case his
testimony shall be received as that of any other witness.
20.
One witness is not allowed in the grand jury room while another witness is being examined.
No one but an authorized person is permitted to be in the presence of
the grand jury while it is conducting its business.
A potential defendant can be called as a witness in exceptional cases,
but only after he has signed an immunity waiver.
21.
The presence of an unauthorized person before a grand jury may result
in the quashing of an indictment and it is a violation of the rule of secrecy
demanded of all grand jury action.
22.
The state's attorney is authorized to be present during sessions of the
grand jury because it is his responsibility to enforce the criminal law.
In exceptional cases the attorney general of the state or a special prosecutor may become authorized persons to be present.
No official other than the state's attorney has a right to be present
during sessions except the prosecuting attorney directed by the court to
attend and even he may be excluded in the sound discretion of the grand
jury.
THE GRAND JURY
[Vol.
44
23.
A witness is not entitled to have counsel present in the grand jury
room.
24.
duty it is to carry on prosecutions
whose
official
is
the
The state's attorney
on behalf of the state. This includes a duty to gather the necessary facts
and present them to the grand jury for their action. He will also draft
the indictments and issue subpoenas for witnesses and documents.
The state's attorney is usually the officer which the court designates to
attend the grand jury sessions.
25.
Generally the grand jury should look to the state's attorney and to
the court for information and advice. However, the grand jury should
keep in mind that they are independent of all officials including the court.
Choice of action and ultimate decisions are within their own power as
a grand jury.
There are exceptional instances when a grand jury may seek the advice
of the attorney general of the state or request the court to appoint a
special prosecutor.
26.
The grand jury has the duty of inquiring into all matters relating to
crime within the county in which they are in session. These matters
may come to their attention in the following ways:
(a) Information that may be called to their attention by the court.
(b) Information submitted by the state's attorney.
(c) Information that may come to their knowledge in the course of
their investigation of matters already before them.
(d) Information that they may know of their own knowledge.
The grand jury should not investigate problems of the community,
such as, housing or sanitary conditions, unless they are related to crime.
An exception is that the grand jury must investigate and report to the
court upon the condition of the county jail and the treatment of prisoners.
27.
The grand jury should also keep in mind that it not only is their duty
to indict, but to guard the rights of citizens by saving them from unwarranted investigations. An investigation of an individual by a grand
jury could permanently- damage the reputation of an innocent person.
28.
The grand jury has the power to act independently of any officials and
may initiate an investigation of any crime within the jurisdiction of the
criminal court. This power extends to the investigation of corrupt conditions which the grand jury believes exist. It is not necessary that the
matter have been brought to their attention by the court or the state's
attorney. The grand jury is not limited in its activity to where there are
specific charges of a crime. An investigation may proceed unaided by the
court or the state's attorney.
19531
THE GRAND JURY
"69
The power of subpoena is included under this broad power of investigation which the grand jury has.
29.
When a complaint is exhibited to the grand jury then there is a specific
charge of a crime. In such a case the grand jury shall hear witnesses, on
behalf of the state only.
30.
When a grand jury is investigating a crime but there is no complaint
against any specific individual then the grand jury may hear any witness
who may aid in the grand jury investigation. In such a case all witnesses
would be state's witnesses.
31.
Every person is protected by a constitutional privilege against self
incrimination. A potential defendant cannot be brought before the grand
jury unless he waives his privilege by signing an immunity waiver. The
ordinary witness before the grand jury has to appear and answer questions until a particular question tends to incriminate him.
The problem of self incrimination raises many legal points and when
such circumstances present themselves the advice of the state's attorney
or the court, or both, should be sought.
32.
Any person who is a potential defendant should be required to sign an
immunity waiver before he appears before the grand jury. Failure to
obtain this waiver.would probably result in the quashing of the indictment.
33.
Under certain circumstances the privilege against self incrimination is
not available to a witness. If the testimony of a witness will materially
aid the state's attorney in his efforts to convict the "higher-ups", but
this testimony would tend to incriminate the witness, then the court may
grant immunity from prosecution to this witness and thereby make his
testimony available to the grand jury. The grant of immunity may be
given upon motion of the state'so attorney only.
A witness who refuses to testify after he has been granted immunity
may be punished for contempt of court.
34.
The individual itizen is not allowed to bring matters directly to the
grand jury. Such an attempt to incite the grand jury to action is contempt of court. Such complaints must be taken to the state's attorney or
a magistrate.
35.
No grand juror during his term of service shall communicate with any
person concerning matters which the jury has considered, is considering
or is about to consider, except that he may talk with officers of the court,
other grand jurors, and witnesses during regular sessions of the grand
jury. A violation of this rule will result in imprisonment in the county
jail for not more than one year.
THE GRAND JURY
[Vol. 4
This rule of secrecy not only protects the grand jurors and persons
appearing before the body, but prevents disclosures which might make it
difficult, if not impossible, to apprehend persons who are indicted.
However, a grand juror may be required to make disclosures of testimony before the grand jury under a proper order of court.
36.
A grand juror cannot be questioned for anything he may say or any
vote he may give during the grand jury proceedings unless it concerns
his own perjury as a sworn witness at the proceedings.
A grand juror is not responsible in case a mistake is made and an innocent person is indicted.
37.
If any person actually interferes with a grand juror in the performance of
his duty or threatens the grand juror that person is subject to a severe
punishment.
38.
A grand jury should not reconsider a matter upon which "not a true
bill" had been returned by a prior grand jury unless additional evidence
has been discovered or unusual circumstances justify it.
39.
At the end of the term of the grand jury they have the power to make
a report to the court upon the general conditions of the county. This
report may include matters which they have not been able to consider
or matters which they have not been able to complete. Although the
,material in the report may be given with the idea that it may encourage
an indictment in the future it is not intended to serve as the basis of an
indictment.
Grand jurors should be warned not to name specific individuals in a
report. Named individuals may have a libel action against the grand jurors
for such action. The report should address itself to general conditions with
the purpose of recommending the extension of their own term, or of aiding
the following grand jury, or of arousing interest in a particular matter
which may lead to the impaneling of a special grand jury.
Abstracts of Recent Cases
"Gambling Tax" Upheld by Supreme Court-Defendants challenged the
constitutionality of the so-called "gambling tax" (26 U.S.C.A. §3285) which
levies a tax on persons engaged in the business of accepting wagers, and requires such persons to register with the Collector of Internal Revenue. Two
grounds were advanced for holding the tax unconstitutional: (1) that Congress, under pretense of exercising the taxing power had attempted to penalize
illegal intrastate gambling and thus infringed on police powers reserved to
the States; and (2) that registration provisions of the tax violated the privilege against self-incrimination and were arbitrary and vague-contrary to
the guarantees of the Fifth Amendment. United States v. Kahriger,73 S. Ct.
510 (1953).
The Supreme Court upheld the constitutionality of the tax on both grounds.
The power of Congress to tax is extensive and sometimes falls with crushing
1953]
THE GRAND JURY
effect on businesses deemed unessential or inimical to public welfare. But an
intent to curtail and hinder, as well as tax, does not of itself invalidate the
tax. Sonzinsky v. United States, 300 U.S. 506 (1937) [tax on firearms];
United States v. Sanchez, 340 U.S. 42 (1950) [tax on marihuana]. While
strictly state governmental activities may be beyond the federal taxing
power, the judiciary cannot prescribe to the legislative departments of the
government limitations upon the exercise of its acknowledged powers. In the
instant case, all penalty provisions were adapted solely to the collection of the
tax and were therefore valid. The registration requirements (requiring the
filing of names, addresses, and places of business) were held to be directly
related to the collection of the tax and thus supportable as in aid of a revenue
purpose.
The "gambling tax" was also held not to violate the privilege against selfincrimination as guaranteed by the Fifth Amendment. Even assuming the
issue might be raised [which is doubtful under'Unite States v. Sullivan, 274
U.S. 259 (1927)], the privilege has relation only to past acts, not to future
acts that may or may not be committed. The registration provisions require
no confession as to acts already committed.
Mr. Justice Jackson reluctantly concurred with the majority. While expressing grave doubts as to the use of the taxing power to accomplish the
social purpose of prohibiting gambling, he felt that to hold with the minority
would be to use the Fifth Amendment to impair unduly the legitimate taxing
power of Congress.
Mr. Justice Frankfurter dissented, holding that oblique use of the taxing
power was here being used to control conduct which the Constitution left to
the responsibility of the states, and should not be upheld "merely because
Congress wrapped the legislation in the verbal cellophane of a revenue
measure." He also felt there was a violation of the Fifth Amendment. Since
Congress cannot constitutionally deal directly with gambling within the States,
it should not be able to "compel self-incriminating disclosurers for the enforcement of State gambling laws, merely because it does so under the guise
of a revenue measure obviously passed not for revenue purposes."
Mr. JusticeBlack, with whom Mr. Justice Douglas concurred, also dissented,
holding the tax to be a violation of the Fifth Amendment. In effect the tax
coerces the confession of a crime, possibly subjecting anyone registering to
Federal penalties (see 26 U.S.C.A. 3285, 3290, 3291, 3294) and certainly to
state criminal prosecution.
For an extensive commentary on the various issues raised in this decision,
see "Coustitutionality of the Federal Gambling Tax," 43 J. CRI. L., CRrmINOLOGY
& PoLIcE
SC I=E
637 (1953).
Cross-Examination Question on Witness's prior Discussion of Case with
District Attorney held Permissible-In Solar v. United States, 94 A.2d 34 (Mun.
Ct. App. D.C. 1953), a negligent homicide prosecution, appellants' attorney
asked a witness on cross-examination a series of questions designed to show
that the witness had recently discussed the case with the District Atiorney.
Since Counsel has both the right and obligation to interview his witnesses in
preparation for trial, the trial judge evidently considered this a trick question designed to reflect in some way upon the office of the District Attorney,
and he instructed the jury to disregard the question and answer.
On appeal, the ruling was reversed. The purpose of the question was not
designed to cast any aspersion on counsel, but only to test the reliability of
witness's recollection of the facts to which he had testified. If the memory
72
THE GRAND JURY
[Vol.44
of a witness is refreshed by having the facts rehearsed to him by others, this
should properly be cosidered by the jury in determining how far the
recollection of the witness is reliable and based upon independent knowledge.
Juror Statutorily Disqualified Not Sufficient Basis for Granting New TrialAppellants contended on appeal that the trial court erred in overruling their
motion for a new trial, it being discovered after the verdict that one of the
jurors who sat in the case had been twice previously convicted of felony
and was therefore disqualified, his civil rights not having been restored.
Ford v. United States, 201 F.2d 300 (Fifth Cir. 1953).
It was held proper not to grant the motion for the new trial. While
previous conviction of a felony does not render the convicted person incompetent to sit as a juror, it is a ground of challenge for cause, which
defendant may insist upon or waive as he elects. Where the objection to a
juror relates not to actual prejudice or other fundamental incompetence, but
to a statutory disqualification only, such disqualification is ordinarily waived
by failure to assert it until after a verdict has been rendered, even though
the facts which constitute the disqualification were not previously known to
the defendants.